The “Discovery” Process: How Your Attorney Learns What Evidence the Prosecutor Has and Decides How to Challenge or Explain It

What is discovery in a DUI case? In fighting your DUI-DWI case, your side has the right to know some, if not all, information about your arrest and the chemical testing the prosecutor is preparing to use against you at your trial. In some jurisdictions, the disclosure of some facts is mandatory, while in other states, disclosure is not as easy to obtain. The process by which this information is released to your attorney by the prosecution, and also (in most states) from your side to the prosecution, is called “discovery.”

The best DUI-DWI trial specialists know what to expect to receive from the prosecutor in a typical case. They also know what they should be provided, and more importantly, when something important appears to be missing. This chapter explains part of the discovery process that applies to your case.

States vary in the comprehensiveness of the discovery allowed under local law, but the United States Supreme Court rulings set the “floor” below which no state can go.

The minimum discovery that must be provided to you in a criminal prosecution (if properly requested by your attorney) has been established by the United States Supreme Court. In a case known as Brady v. Maryland, if the prosecution has any exculpatory evidence (evidence that tends to be favorable to you), he or she must eventually provide this evidence. In some jurisdictions, however, this can be withheld until your trial.

When a prosecutor fails to divulge such important data in a timely fashion, this is called a “discovery violation.” There are three components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it tends to impeach the police officer; the evidence must have been suppressed or withheld by the State, either willfully or inadvertently; and prejudice to your case must have occurred.

The “floor” of discovery has other limits. The Sixth Amendment compulsory process clause may be violated if a trial judge blocks a defense witness’s ability to testify if that ruling entirely excludes the testimony of a material defense witness. If your DUI-DWI case is pending in federal court, the discovery rules are covered in Federal Rules of Criminal Procedure, Rule 16. Otherwise, rely upon your DUI-DWI trial specialist to understand your state’s laws. He or she will be fully aware of how strong the discovery laws are in your state.

Different Tools Can Be Used During the Discovery Phase

Many different tools may be utilized by your attorney in a criminal prosecution in order to “discover” information regarding the evidence the prosecutor will use to try to prove your guilt. Either side can require people to come to court to testify (through issuance of a subpoena), or require them to come to court and bring documents or other items with them to be used as possible evidence in your trial. (This is called a “subpoena duces tecum”). A motion to produce (similar to the device used in a civil case) may be used in your state, too. These and other possible tools are discussed below.

In some states, a pre-trial deposition (sworn testimony from key state witnesses taken down verbatim by a court reporter), can be requested by your attorney. Also, as part of your administrative license suspension (or revocation) hearing, your attorney may be able to use civil “discovery” tools such as a “notice to produce” (to compel documents or tapes to be turned over), “requests to admit” certain facts, or other civil forms of discovery to uncover favorable evidence. In some jurisdictions, the use of pre-trial “civil” depositions of police officers may be available for your attorney to use.

The primary purpose of forcing the state to reveal or turn over 100% of any available items that will (or could be) used to help prove your case at trial is that your skilled DUI-DWI defense attorney knows that the “smoking gun” that wins your case may be found in these materials. Additionally, any pre-trial hearings or depositions that require your police officers to give sworn testimony “locks in” key testimony from them for your trial when it later gets scheduled. This can lead to the impeachment of the officer and possibly cause his or her total collapse on the witness stand.

Discovery Through the Use of Subpoenas

A subpoena is an order of the court handling your case for a witness to appear at a particular time and place, for the purpose of giving sworn testimony. A subpoena may also be used in some states to obtain pre-trial testimony from a witness at scheduled depositions (testimony under oath taken outside of court), pre-trial motions, or administrative license suspension/revocation hearings and at trial.

Subpoenas are issued by the court clerk or the judge of the tribunal you are in (e.g., criminal court or administrative license suspension hearings) under the authority of the court, but must be served personally on the party being summoned. Failure to appear as required by the subpoena can be punished as contempt of court if it appears the absence was intentional or occurred without justifiable excuse for non-attendance.